Max Mosley v News Group Newspapers Limited [2008] EWHC 1777 (QB)[1] was an English High Court case in which President of the Fédération Internationale de l'AutomobileMax Mosley challenged the News of the World newspaper who exposed his involvement in a Sado-masochistic sex act involving several female prostitutes when they published a video of the incident recorded by one of the women[3] and published details of the incident in their newspaper. The case resulted in Mr Mosley being awarded £60,000 in damages.[4]

Contents

Facts

The claimant Max Mosley had been President of the Fédération Internationale de l'Automobile since 1993 as well as being trustee of its charitable arm the FIA Foundation.[1] He brought legal action against News Group Newspapers Ltd, the publishers of The News of the World newspaper complaining about an article by journalist Neville Thurlbeck published on 30 March 2008. The headline of the article was “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS”.[5] This was accompanied by the sub-heading “Son of Hitler-loving fascist in sex shame”.[1] Max Mosley is the son of Fascist leader Oswald Mosley who was the leader of the British Union of Fascists during the 1930s. Mosley relied upon an action based upon breach of confidence or the unauthorised disclosure of personal information rather than defamation. Mosley claimed that the portrayal of sado-masochistic activities was inherently private in nature and that there had been a pre-existing relationship of confidentiality between the participants.[1]

Judgment

Mosley's case relied in part on the ruling in the case McKennitt v Ash where there was "breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply of the purloining of private information”.[6] However Mr Justice Eady also stated "The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.".[1] He stated that the passing of the Human Rights Act 1998 required this conclusion and that therefore the relevant values in this cases were expressed in Articles 8 and 10 of the European Court of Human Rights, as Campbell v MGN Ltd established these values are as much applicable to disputes between two private individuals as where one is a public body.Justice Eady believed that the first hurdle this needed to overcome is the need to show a reasonable expectation of privacy,[1] and if this could be overcome it is a matter of weighing up the competing Convention rights.

The "Nazi" allegation

The principal factual dispute between the parties was whether there was any "Nazi" or "deathcamp" element to the incident. The claimant denied this as did four of the prostitutes. On the fourth day of the trial it was revealed that News Group Newspapers Limited would place no further reliance on "Woman E" the prostitute who had recorded the incident and eventually received £20,000 for doing so. The lawyers representing Mr Mosley contended that the video represented a ""standard” S and M prison scenario".

The News of the World published a 10 point rebuttal of the suggestion that there was no Nazi element to the activities of Mr Mosley [7]:

Two hookers wore German military jackets with eagle and tunic collars.

Three of the vice girls wore striped prison uniforms.

Mosley played a death camp inmate – guards checked him for lice and took measurements with a clipboard.

He is told to face the floor as girl signs for him on clipboard.

One ‘guard’ uses the term ‘facility’ – the sort of clinical language associated with Nazis.

Mosley gives out brutal beatings – like concentration camps.

He is shaved – just like the Jews.

Other camp ‘victims’ are forced to watch their friends being abused.

Mosley speaks in German.

He uses fake German accent to speak English.

Mr Justice Eady suggested that equating everything German with Nazism was offensive. He concluded that there was nothing specific to the Nazi period about the medical examination nor the fact that the claimant had his head shaved. Eady also concluded that the use of an English nom de guerre weakened the suggestion that there was a Nazi element to the incident. Eady suggested that the prison uniforms did nothing to identify the Nazi era. The News of the World relied upon an exclamation by one of the women who stated "“Brunettes rule!". It was suggested that this could be considered a reference to Nazi racial policies.

The missing e-mails

The News of the World placed weight on the fact that one of the prostitutes (Woman "A") deleted e-mails prior to the trial.

Neville Thurlbeck

Neville Thurlbeck the journalist who broke the original story threatened the prostitutes that unless they cooperated with him then they could be exposed in a follow up story. The statements of Mr Thurlbeck in court were criticised as "erratic and changeable".[citation needed]

Allegation of criminality

Case

Mosely challenged the publication of details of his private life under Article 8 of the European Convention on Human Rights in respect to a headline which read “F1 boss has sick Nazi orgy with five hookers”. The defendant argued that the newspapers' right to freedom of expression should prevail due to the public interest in knowing the individual was involved in Nazi role play and, irrespective of the Nazi element, the public had a right to know as the individual was the President of the FIA. The court ruled that even in cases of adultery the Sado-masochistic behaviour was not a matter of public interest but that there could be a public interest if the behaviour involved the mocking of Jews or the Holocaust.[8] Mosley was award £60,000 from the case and the court ruled that there was no evidence of a Nazi element to the sex act.The case established that Sado-masochism was not of a public interest unless there was a significant breach of the criminal law or contervailing public interest generated by an established principle such as victimisation of the young.

Criticism

The case has been criticised due to concerns that it may have a chilling effect on investigative journalism. Media lawyer Mark Stephens expressed such sentiments after the judgment and noted the hefty price that newspapers would pay for getting a "public interest" decision wrong.[9] Newspapers criticised the judgment, The Sun described it as "dark day for British freedom" and a step towards "a dangerous European-style privacy law".[10] However lawyer Dan Trench argues that the level of damages awarded in privacy cases will not deter publication,[11] and the judgment has been met with approval by some commentators.[12]

Significance

Giving his reaction to the judgment Max Mosley stated "I am delighted with that judgment, which is devastating for the News of the World.It demonstrates that their Nazi lie was completely invented and had no justification."[4]

Following the incident Mosely faced a confidence vote as President of the Fédération Internationale de l'Automobile. He won the vote by 103 votes to 55.[13] Mosely has stated his intention to pursue further libel actions in France, Germany and Italy where newspapers reprinted images of him engaging in sex acts.[2]

News of the World editor Colin Mayer later admitted that the legal action had cost the newspaper nearly £1,000,000.[14]

Injunction

Mosley sought an injunction to prevent the republication of the video of him and five prostitutes from being put back onto the Internet. However, this was denied as Mr Justice Eady concluded that the video was too widely available to serve any purpose.[15] The video recording is still widely accessible on the Internet.

Libel

In April 2009 a libel action was brought against News Group Newspapers Limited.[16]